{ "id": 8522808, "name": "LAURIE O. SEGREST, Administrator of the Estate of AMY DOLAN SEGREST, Plaintiff v. MICHAEL T. GILLETTE, KATHRYN N. GREENHOOT, SOUTHEAST ANESTHESIA ASSOCIATES, P.A., CHARLOTTE MEMORIAL HOSPITAL AND MEDICAL CENTER, INC., and CHARLOTTE MECKLENBURG HOSPITAL AUTHORITY, Defendants", "name_abbreviation": "Segrest v. Gillette", "decision_date": "1989-12-05", "docket_number": "No. 8926SC98", "first_page": "435", "last_page": "443", "citations": [ { "type": "official", "cite": "96 N.C. App. 435" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "341 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714944, 4719591, 4715636, 4716697, 4717148 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0587-05", "/nc/315/0587-02", "/nc/315/0587-03", "/nc/315/0587-04", "/nc/315/0587-01" ] }, { "cite": "331 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526666 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0098-01" ] }, { "cite": "245 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "800" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550852 ], "year": 1978, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0121-01" ] }, { "cite": "286 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "304 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570528 ], "year": 1982, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0696-01" ] }, { "cite": "99 Ariz. 43", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 583498 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "49" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ariz/99/0043-01" ] }, { "cite": "251 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "412", "parenthetical": "quoting State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397, 401 (1965)" } ], "opinion_index": 0 }, { "cite": "296 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567620 ], "year": 1979, "pin_cites": [ { "page": "463-4", "parenthetical": "quoting State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397, 401 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0454-01" ] }, { "cite": "125 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "328-9" } ], "opinion_index": 0 }, { "cite": "257 N.C. 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565367 ], "year": 1962, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0032-01" ] } ], "analysis": { "cardinality": 756, "char_count": 19122, "ocr_confidence": 0.741, "pagerank": { "raw": 2.736176811408352e-07, "percentile": 0.8315309116477447 }, "sha256": "13f1b088e2dbe5b92576c90f0ae1574a882f66e981753b616cdfe474ddd40ca2", "simhash": "1:8b79872bd79e9892", "word_count": 3013 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge BECTON concur." ], "parties": [ "LAURIE O. SEGREST, Administrator of the Estate of AMY DOLAN SEGREST, Plaintiff v. MICHAEL T. GILLETTE, KATHRYN N. GREENHOOT, SOUTHEAST ANESTHESIA ASSOCIATES, P.A., CHARLOTTE MEMORIAL HOSPITAL AND MEDICAL CENTER, INC., and CHARLOTTE MECKLENBURG HOSPITAL AUTHORITY, Defendants" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiff does not assign error to any issues relevant to defendants Charlotte Memorial Hospital and Charlotte-Mecklenburg Hospital Authority\u2019s alleged negligence. The judgment of the trial court that Amy Segrest\u2019s death was not caused by negligence of these defendants is affirmed. The remainder of this opinion will address issues relevant to the alleged negligence of defendants Gillette, Greenhoot and Southeast Anesthesia Associates, P.A. (hereinafter Gillette, et al.).\nPlaintiff first contends the trial court erred by excluding Amy Segrest\u2019s death certificate from evidence. The death certificate contained, in pertinent part, the following statements:\nDeath Caused By:\n(a) Immediate Cause: Acute Liver Failure with Massive Necrosis\n(b) Due to, or as a Consequence of: History of Halothane Anesthesia\nDr. Hobart Wood, the medical examiner who signed the death certificate, testified on voir dire that he did not conduct any part of the autopsy on Amy Segrest and was not in a position to give an opinion on the cause of her death. Given Dr. Wood\u2019s own admission that he could not give an opinion as to Amy Segrest\u2019s cause of death, the trial court did not err in excluding the death certificate from evidence.\nPlaintiff next contends the trial court erred by excluding the testimony of Dr. Wood, the medical examiner, concerning the cause of Amy Segrest\u2019s death. The reasons for excluding the death certificate apply equally to Dr. Wood\u2019s testimony. The ruling excluding the trial testimony was correct.\nPlaintiff, in his next assignment of error, contends the trial court erred by admitting into evidence a Miscellaneous Lab Slip that came to be known during the trial as the \u201cIgM slip,\u201d as well as expert opinions based upon that slip. We agree with plaintiff that the IgM slip itself was inadmissible hearsay and should have been excluded as substantive evidence of the facts contained therein. However, the IgM slip was admissible for the limited purpose of showing the facts upon which the expert opinions as to Amy Segrest\u2019s cause of death were based.\nTestimony at trial showed the following: During the period just before Amy Segrest\u2019s death, her doctors conducted various tests in an attempt to determine the cause of her deteriorating condition. On 24 January 1983, several hours before her death, one of her doctors requested a test for the Epstein-Barr virus. The test was performed at Presbyterian Hospital, the only Charlotte Hospital equipped to perform the Epstein-Barr test. At the relevant time, there were two different Epstein-Barr virus tests available: an IgG test, which showed past exposure to the virus, and an IgM test, which showed a current acute infection with the virus. Presbyterian Hospital had the capability to perform both the IgG and IgM tests, although the IgM test had only become available at Presbyterian in early January 1983. The lab slip from Presbyterian indicated her Epstein-Barr test result was \u201cpositive 1:160.\u201d None of the documents available at the time of trial (hospital chart, lab slips, Charlotte Memorial Hospital log book) specified which Epstein-Barr test was requested or actually conducted.\nSometime after November 1985, Dr. Hershey, who was affiliated with defendant Southeast Anesthesia Associates, asked Ms. Marilee Martin, a Charlotte Memorial lab technician, to obtain further information on the Epstein-Barr test results. Ms. Martin\u2019s practice was to call the hospital that performed a particular test to obtain the information requested by a doctor. As a result of her inquiry to Presbyterian Hospital, Ms. Martin wrote out the Miscellaneous Lab Slip that came to be known as the \u201cIgM slip.\u201d That slip specified that, of the two available Epstein-Barr tests, Presbyterian had performed an IgM test. The admissibility of this \u201cIgM slip,\u201d as well as expert opinions based upon it, is the subject of plaintiffs assignment of error.\nHospital records are admissible under an exception to the rule against hearsay if the records meet the requirements of G.S. \u00a7 8C, Rule 803(6), which in pertinent part provides:\n(6) Records of Regularly Conducted Activity. \u2014 A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.\nSee Sims v. Insurance Co., 257 N.C. 32, 35, 125 S.E.2d 326, 328-9 (1962). The IgM slip does not satisfy the requirements of Rule 803(6). Specifically, the test for Epstein-Barr virus was conducted on 24 or 25 January 1983. Although defendants\u2019 witnesses could not place precisely when the slip was written, Dr. Hershey, President of Southeast Anesthesia Associates, P.A., testified that he requested the information on Amy Segrest\u2019s Epstein-Barr test results sometime after November 1985, at least two years and nine months after Amy Segrest\u2019s death. The IgM slip was not, therefore, made \u201cat or near the time\u201d of the test itself and does not possess the guarantees of trustworthiness sufficient to justify its admission into evidence.\nAlthough the IgM slip was not admissible as substantive evidence of the information it contained, the IgM slip could serve as the basis of expert opinion testimony. N.C.G.S. \u00a7 8C, Rule 703 in pertinent part provides:\nThe facts or data in a particular case upon which an expert bases an opinion . . . may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions . . . upon the subject, the facts or data need not be admissible in evidence.\nAn expert may testify to the facts or data that form the basis of his opinion,\nnot ... to indicate the ultimate truth [of those facts], but as one of the bases for reaching his conclusion, according to accepted medical practice. The court should therefore exercise care in the manner in which such testimony is elicited, so that the jury may understand that the [facts forming the basis of the expert opinion do] not constitute factual evidence, unless corroborated by other competent evidence.\nState v. Wade, 296 N.C. 454, 463-4, 251 S.E.2d 407, 412 (1979) (quoting State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397, 401 (1965)).\nTwo defendants, Doctors Greenhoot and Gillette, and Dr. Pollard, an associate of Greenhoot and Gillette, each testified as to their opinion on Amy Segrest\u2019s cause of death. Each testified that her death was, in their opinion, caused by active Epstein-Barr virus. Each supported their opinion with the IgM slip, which showed a positive diagnosis of active Epstein-Barr virus. Even though the IgM slip was inadmissible hearsay, it was admissible to show the basis of expert opinion testimony.\nThe court erred in admitting the IgM slip without an instruction limiting its use to providing the basis for the experts\u2019 opinions. Since the IgM slip was a crucial piece of evidence supporting defendant\u2019s contention that Epstein-Barr virus, not Halothane anesthesia, was the cause of Amy Segrest\u2019s death, its admission as substantive evidence in violation of the rule against hearsay constitutes prejudicial error and justifies a new trial.\nSince we are awarding plaintiff a new trial, we need not address plaintiff\u2019s remaining assignments of error.\nDefendants, Gillette, Greenhoot and Southeast Anesthesia Associates, P.A., raise two cross-assignments of error. In the first, defendants Gillette, et al., contend the trial court erred in refusing to instruct the jury about allegedly improper statements made by plaintiff\u2019s counsel in closing arguments. Rule 10 of the N.C. Rules of Appellate Procedure in pertinent part provides:\n(d) Exceptions and Cross-Assignments of Error by Appellee. Without taking an appeal an appellee may set out exceptions to and cross-assign as error any action or omission of the trial court . . . which deprived the appellee of an alternative basis in law for supporting the judgment. . . .\nAppellate Rule 10(d) protects \u201cappellees who have been deprived in the trial court of an alternative basis in law on which their favorable judgment could be supported, and who face the possibility that on appeal prejudicial error will be found in the ground on which their judgment was actually based.\u201d Carawan v. Tate, 304 N.C. 696, 701, 286 S.E.2d 99, 102 (1982). The judge\u2019s refusal to give the requested instruction did not deprive the defendants Gillette, et al., of an alternative basis in law for the verdict in their favor. Hence, this issue is not properly before us and we will not decide it.\nIn their second cross-assignment of error, defendants Gillette, et al., argue the trial court erred in sanctioning their failure to make discovery by limiting them to one expert witness. Just over two months before the deadline set by the trial court for completion of discovery, plaintiff served an interrogatory upon all defendants seeking information about the expert opinion witnesses that defendants expected to testify \u2014 subject matter of testimony, substance of facts and opinions and summary of grounds for each opinion. When defendants failed to answer within the thirty days allowed by Rule 33, plaintiff moved pursuant to Rule 37 for sanctions for defendants\u2019 failure to answer the interrogatory. Plaintiff\u2019s motion for sanctions was made approximately four and a half months after service of interrogatories on defendants, over three months after the deadline set for completion of discovery, and just over two months before the case was set for trial. Following plaintiff\u2019s motion for sanctions, defendants Gillette, et al., responded to plaintiff\u2019s interrogatory by identifying the expert witnesses they expected to use at trial and the subject matter and grounds of the expert testimony. The judge granted plaintiff\u2019s motion for sanctions. The order prohibited defendants Gillette, et al., from presenting testimony from five doctors listed as expert witnesses and allowed the testimony of a single expert witness (apart from the named doctor-defendants who also testified in the case).\nRule 37 of the N.C. Rules of Civil Procedure in pertinent part provides:\n(d) ... If a party . . . fails . . . (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories,. . . the court in which the action is pending on motion . . . may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule.\nAmong the allowable sanctions is \u201can order . . . prohibiting him from introducing designated matters in evidence.\u201d N.C.R. Civ. Proc. 37(b).(2)b.\nThe imposition of sanctions under Rule 37(d) is in the sound discretion of the trial judge. Imports, Inc. v. Credit Union, 37 N.C. App. 121, 124, 245 S.E.2d 798, 800 (1978). See also W. Shuford, N.C. Civil Practice and Procedure, \u00a7 37-14 (3rd ed. 1988). Defendants Gillette, et al., were properly served with plaintiff\u2019s interrogatory about expert testimony, a crucial aspect of this medical malpractice case. The fact that plaintiff\u2019s interrogatories were ultimately answered, however late, does not prevent the court from imposing sanctions under Rule 37(d) on plaintiff\u2019s motion. See Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763 (1985), cert. denied, 315 N.C. 587, 341 S.E.2d 25 (1986). Defendants Gillette, et al., did not respond or object to the interrogatory until after the plaintiff moved for sanctions, long after the thirty days allowed for response under Rule 33. Defendants Gillette, et al., do not argue that their failure to reply was involuntary or beyond their control and offer no explanation for their failure to respond. Under these circumstances, we find no abuse of discretion in the judge\u2019s order limiting the number of expert witnesses defendants Gillette, et al., could use at trial.\nNo error as to defendants Charlotte Memorial Hospital and Medical Center, Inc. and Charlotte-Mecklenburg Hospital Authority.\nReversed and remanded for a new trial as to defendants Gillette, Greenhoot and Southeast Anesthesia Associates, P.A.\nChief Judge HEDRICK and Judge BECTON concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Law Offices of Grover C. McCain, by Grover C. McCain, Jr. and William R. Hamilton, for plaintiff appellant.", "Golding, Meekins, Holden, Cosper & Stiles, by V. Elaine Cohoon and John G. Golding, for defendant appellees Gillette, Greenhoot and Southeast Anesthesia, P.A.; and R. Cartwright Carmichael, Jr. for defendant appellees Charlotte Memorial Hospital and Medical Center and Charlotte-Mecklenburg Hospital Authority." ], "corrections": "", "head_matter": "LAURIE O. SEGREST, Administrator of the Estate of AMY DOLAN SEGREST, Plaintiff v. MICHAEL T. GILLETTE, KATHRYN N. GREENHOOT, SOUTHEAST ANESTHESIA ASSOCIATES, P.A., CHARLOTTE MEMORIAL HOSPITAL AND MEDICAL CENTER, INC., and CHARLOTTE MECKLENBURG HOSPITAL AUTHORITY, Defendants\nNo. 8926SC98\n(Filed 5 December 1989)\n1. Physicians, Surgeons and Allied Professions \u00a7 15.1 (NCI3d) \u2014 wrongful death \u2014 medical malpractice \u2014 death certificate and testimony of medical examiner excluded \u2014 no error\nThe trial court did not err in a wrongful death action arising from alleged medical malpractice by excluding the death certificate and the testimony of the medical examiner where the medical examiner testified on voir dire that he did not conduct any part of the autopsy on the deceased and was not in a position to give an opinion on the cause of death.\nAm Jur 2d, Death \u00a7\u00a7 462, 546.\n2. Physicians, Surgeons and Allied Professions \u00a7 15 (NCI3d) \u2014 lab slip \u2014 erroneously admitted without limiting instruction\u2014 prejudicial error\nThere was prejudicial error in a wrongful death action arising from alleged medical malpractice where the trial court admitted a lab slip without a limiting instruction. Several hours before the deceased\u2019s death, one of her doctors requested an Epstein-Barr virus test, which had to be performed at another hospital; none of the material available at the time of trial specified which Epstein-Barr test was requested or performed; the deceased died in early January 1983; a doctor affiliated with defendant asked a lab technician to obtain further information on the test results some time after November 1985; the lab technician called the hospital that performed the test and wrote out the lab slip that became known as the \u201cIgM slip\u201d; and that slip specified that Presbyterian Hospital had performed an IgM test and that the results were positive. The IgM slip did not satisfy the requirements of N.C.G.S. \u00a7 8C-1, Rule 803(6), in that this slip was not made at or near the time of the test itself; the slip could serve as the basis of expert opinion testimony under N.C.G.S. \u00a7 8C-1, Rule 703, but the court erred in admitting the slip without an instruction limiting its use to providing the basis for the experts\u2019 opinions.\nAm Jur 2d, Hospitals and Asylums \u00a7 43.\n3. Appeal and Error \u00a7 24.1 (NCI3d)\u2014 wrongful death \u2014 medical malpractice \u2014 cross-assignment of error \u2014 not an alternate basis for verdict\nIn a wrongful death action arising from alleged medical malpractice, the Court of Appeals did not consider a cross-assignment of error to the trial court\u2019s refusal to instruct the jury about allegedly improper statements by plaintiff\u2019s counsel in closing arguments where the refusal to give the requested instruction did not deprive the defendants of an alternate basis in law for the verdict in their favor. N.C. Rules of Appellate Procedure, Rule 10(d).\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7 363.\n4. Bills of Discovery \u00a7 6 (NCI3d); Rules of Civil Procedure \u00a7 37 (NCI3d)\u2014 wrongful death action \u2014 failure to timely answer interrogatory \u2014 sanctions \u2014no abuse of discretion\nThe trial court did not abuse its discretion in a wrongful death action arising from alleged medical malpractice by limiting the number of expert witnesses defendants could use at trial where plaintiff served an interrogatory upon all defendants seeking information about the expert witnesses defendants expected to testify just over two months before the deadline set by the trial court for completion of discovery; defendants failed to answer within the thirty days provided by N.C.G.S. \u00a7 1A-1, Rule 33; plaintiffs moved pursuant to N.C.G.S. \u00a7 1A-1, Rule 37, for sanctions; defendants then responded to the interrogatory; and the trial judge granted plaintiff\u2019s motion for sanctions. Defendants did not argue that their failure to reply was involuntary or beyond their control and offered no explanation for their failure to respond.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 70, 209, 357; Physicians, Surgeons, and Other Healers \u00a7 357.\nAPPEAL by plaintiff from judgment entered 29 March 1988 by Judge James U. Downs in MECKLENBURG County Superior Court. Heard in the Court of Appeals 18 September 1989.\nThis is a wrongful death action based upon alleged medical malpractice brought by the administrator of Amy Segrest\u2019s estate against Southeast Anesthesia Associates, P.A., two of its member anesthesiologists, Michael T. Gillette and Kathryn N. Greenhoot, and Charlotte Memorial Hospital and Medical Center, Inc. and Charlotte Mecklenburg Hospital Authority. On 22 December 1982, Amy Segrest, age seven, was admitted to Charlotte Memorial Hospital for treatment of a fourth degree burn on her ankle resulting from a mishap on a moped. Over the course of the next three weeks, several surgeons performed five surgical procedures on Amy. The anesthesia administered for the first four procedures included Halothane, while Ethrane was administered for the fifth. Evidence at trial showed that over the course of her hospital stay, Amy experienced the following symptoms: vomiting, increased blood pressure and temperature, mouth ulcers, decreased appetite, a yellow tint to her skin, and dark urine. In addition to the plastic surgeons operating on her ankle and the anesthesiologists administering the anesthesia for those surgeries, Amy was attended by several physicians from Eastover Pediatric Clinic, including a specialist in infectious diseases. These other physicians were consulted regarding her symptoms. Following the fifth operation, Amy\u2019s condition deteriorated. Her doctors conducted various tests, including a test for Epstein-Barr virus (mononucleosis) in an attempt to determine the cause of her illness. Amy died at the hospital on 24 January 1983. Additional pertinent facts are set out in the opinion.\nPlaintiff instituted this action against defendants on 23 January 1985. The case was tried to a jury in Mecklenburg County Superior Court and the jury returned a verdict in favor of the defendants. From a judgment entered in accordance with that verdict, plaintiff appeals and defendants Gillette, Greenhoot and Southeast Anesthesia Associates, P.A., set out cross-assignments of error.\nLaw Offices of Grover C. McCain, by Grover C. McCain, Jr. and William R. Hamilton, for plaintiff appellant.\nGolding, Meekins, Holden, Cosper & Stiles, by V. Elaine Cohoon and John G. Golding, for defendant appellees Gillette, Greenhoot and Southeast Anesthesia, P.A.; and R. Cartwright Carmichael, Jr. for defendant appellees Charlotte Memorial Hospital and Medical Center and Charlotte-Mecklenburg Hospital Authority." }, "file_name": "0435-01", "first_page_order": 467, "last_page_order": 475 }